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Olga Bard Acupuncture, P.C. As Assignee of March Othneil v. Geico Ins. Co

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


June 28, 2012

OLGA BARD ACUPUNCTURE, P.C. AS ASSIGNEE OF MARCH OTHNEIL,
RESPONDENT,
v.
GEICO INS. CO.,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 8, 2009.

Olga Bard Acupuncture, P.C. v GEICO Ins. Co.

Decided on June 28, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: WESTON, J.P., PESCE and ALIOTTA, JJ

The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff's motion seeking summary judgment upon plaintiff's first through third causes of action as to claims bearing CPT codes 97810 and 97811, and denied the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's second and third causes of action and so much of plaintiff's first cause of action as sought to recover for claims bearing CPT codes 97810 and 97811.

ORDERED that the order, insofar as appealed from, is reversed, without costs, the branches of plaintiff's motion seeking summary judgment upon plaintiff's first through third causes of action as to claims bearing CPT codes 97810 and 97811 are denied, and the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's second and third causes of action and so much of plaintiff's first cause of action as sought to recover for claims bearing CPT codes 97810 and 97811 are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as granted the branches of plaintiff's motion seeking summary judgment upon plaintiff's first through third causes of action as to claims bearing CPT codes 97810 and 97811, and denied the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's second and third causes of action and so much of plaintiff's first cause of action as sought to recover for claims bearing CPT codes 97810 and 97811.

The affidavits submitted by defendant in support of its cross motion were sufficient to establish that defendant had timely denied (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) plaintiff's claims at issue, based upon the workers' compensation fee schedule, and that defendant had fully paid plaintiff for the claims for acupuncture services billed under CPT codes 97810 and 97811, in accordance with the workers' compensation fee schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is reversed, the branches of plaintiff's motion seeking summary judgment upon plaintiff's first through third causes of action as to claims bearing CPT codes 97810 and 97811 are denied, and the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's second and third causes of action and so much of plaintiff's first cause of action as sought to recover for claims bearing CPT codes 97810 and 97811 are granted.

Weston, J.P., Pesce and Aliotta, JJ., concur.

Decision Date: June 28, 2012

20120628

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